GRANT STREET GROUP, INC. v. REALAUCTION.COM, LLC

Filing 556

ORDER granting in part and denying in part 454 Objections filed by GRANT STREET GROUP, INC., 456 Objections filed by REALAUCTION.COM, LLC, 455 Objections filed by GRANT STREET GROUP, INC., and 463 Objections to Counter Deposition Designation filed by REALAUCTION.COM, LLC. Signed by Judge Donetta W. Ambrose on 12/28/12. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GRANT STREET GROUP, INC.,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
REALAUCTIONS.COM, LLC,
Defendant.

Civil Action No. 9-1407

AMBROSE, Senior District Judge
ORDER OF COURT
The parties have filed excessively extensive Objections to deposition designations,
counter designations and trial exhibits. (ECF Nos. 454-456, 463). Based on my review of the
same, I find as follows:
1.

Unless otherwise noted below, all objections based on form, foundation, argumentative,

speculation,

confusion,

repetition,

compound,

duplicative,

incomplete

document,

vagueness/ambiguousness, no predicate for refreshing recollection, or assuming facts not in
evidence are denied without prejudice as premature as these can be cured at trial.
2.

Unless otherwise noted below, all objections based on “prejudice” or “fairness” are

denied. The standard requires that the moving party show the evidence should be excluded
because its probative value is “substantially outweighed by a danger of….unfair prejudice.”
F.R.E 403. Unfair prejudice means an undue tendency to suggest decision on an improper
basis. The sum total of the movant’s argument is the word “prejudicial” or “fairness” and thus,
the movant has failed to provide any grounds for meaningful assessment of the objection.
3.

Unless otherwise noted below, all objections based on relevance are denied, without

prejudice, as premature.
4.

Unless otherwise noted below, all objections as to exhibits that a party suggests that it

“may offer” but is not sure it will offer are denied, without prejudice, as premature.

5.

Unless otherwise noted below, all objections as to mischaracterizations based on prior

testimony or improper characterization of exhibit are denied as parties may counter designate.
6.

Unless otherwise noted below, for rulings on all objections based on a Motion in Limine,

please refer to the ruling on that Motion in Limine for the ruling on the objection.
7.

As to the remainder of the objections, I rule as follows:

Grant Street Group’s Objections to Deposition Designation (ECF No. 454)
Witness
David Dering,
Robert O’Neill,
Jeffery Harris,
Daniel J. Veres,

Objection / Pages
General Objection to
unavailability

Ruling
Denied, see FRCP 32(a)(3) and FRE
801(d)(2)(D)

Robert O’Neill
Robert Panoff

All Objections as to Grant
Street’s Motion in Limine #6
re: Inequitable Conduct

Danie Veres

98:16-18 (legal conclusion)
99: 5-7 (legal conclusion)
General Objection based on
reasons set forth in Grant
Street’s Motion in Limine #1
re: testimony and Evidence
regarding eBay

Granted to the extent said testimony relates
the Motion in Limine #6, which was granted
on September 25, 2012 prohibiting certain
testimony, argument, suggestions or
evidence relating to inequitable conduct
As to legal conclusion, granted.

James Griffith

Hearsay Objections
Ian Yorty
Donald O’Neill

Denied, see Order denying Motion in Limine
#1.

Denied, see Order denying Motion in Limine
#1.
Designations withdrawn

83-84
94: 9-10
94:15-95:9
All Objections relating to
Motion in Limine re: Issue
Preclusion

Granted in part and denied in part as is
consistent with my ruling on Motion in
Limine regarding issue preclusion at ECF
No. 483

2

Grant Street’s Objections to Defendant’s Trial Exhibits (ECF No. 455)
Ex. No.
D16
D38

Objection
Hearsay, as to cover letter
Hearsay

D39

Hearsay

D45
D52
D62
D90

Hearsay, as to email from
J. Taylor
Hearsay
Hearsay
Hearsay

D95
D96

Hearsay
Hearsay

D97

Hearsay

D98
D99
D100
D101
D102
D113

Hearsay
Hearsay
Hearsay
Hearsay
Hearsay
Hearsay

D114

Hearsay

D115

Hearsay

D116

Hearsay

D117

Hearsay

D158
D159
D160
D161
D162
D165

Hearsay
Hearsay
Hearsay
Hearsay
Hearsay
Hearsay

Ruling
Denied for reason stated
Denied without prejudice to be reasserted at time of trial
if and when the exhibit is used. The objection and
response are so cryptic that the court is unable to make
a ruling at this time as to whether the statements fall
under FRE 801(d)(2) and/or 803(6).
Denied without prejudice to be reasserted at time of trial
if and when the exhibit is used. The objection and
response are so cryptic that the court is unable to make
a ruling at this time as to whether the statements fall
under FRE 801(d)(2) and/or 803(6).
Granted to the extent J. Taylor will not be testifying at
trial.
Denied based on FRE 803(17)
Denied based on FRE 803(6)
Denied, not offered for truth but offered for limited
purpose of showing the communication took place
Denied based on FRE 803(18)
Denied based on 803(6). Additionally, not offered for
truth just date
Denied based on 803(6), not offered for truth but rather
to show date
Denied based on 803(6)
Denied based on 803(6)
Denied based on 803(6)
Denied based on 803(6)
Denied based on 803(6)
Denied based on 803(6). Additionally, not offered for
truth.
Denied based on 803(6). Additionally, not offered for
truth.
Denied based on 803(6). Additionally, not offered for
truth.
Denied based on 803(6). Additionally, not offered for
truth.
Denied based on 803(6). Additionally, not offered for
truth.
Denied based on 803(6).
Denied based on 803(6).
Denied based on 803(6).
Denied based on 803(6).
Denied based on 803(6).
Denied
3

D166
D173
D189
D190
D191
D200
D204
D230
D241
D260
D263

Hearsay
Hearsay
Hearsay
Hearsay
Hearsay
Hearsay
Hearsay (video)
Hearsay
Hearsay
Hearsay
Hearsay

Denied
Denied without prejudice
Denied based on 803(6)
Denied based on 803(6)
Denied based on 803(6)
Denied based on 803(18)
Denied without prejudice
Denied
Denied
Denied
Denied

4

Realauctions’s Objections to Deposition Designation (ECF No. 456-1)
Witness
David Epner

Kenneth Dale
Farmer, Jr.

Alexander
Lizano
Doug
McClendon

Craig McIntyre

Eric Benson
Ronald E. Rubin

Objection Pages
19:17-20:23 (hearsay)
45:18-46:7 (legal conclusion)
46:10-17 (legal conclusion)
46:18-19; 22-25 – 47:1-4)
(legal conclusion)
65:9-66:9 (hearsay)
80:14-81:1 (legal conclusion)
59:20-23 (hearsay)
126:17-26
140:2-3 (hearsay)
140:15-18 (misstates content)
141:19-22 (hearsay)
5:23-7:9 (delay)
8:5-21 (delay)
94:13-96:19 (fairness)
37:14-38:16 (hearsay)
89:12-91:12 (hearsay)
107:6-108:8 (legal
conclusion)
108:20-109:5 (legal
conclusion)
54:15-55:16 (legal
conclusion)
55:25-57:11 (legal
conclusion)
57:14-20 (legal conclusion)
57:23-58:18 (legal
conclusion)
65:7-66:13 (legal conclusion)
66:16-67:18 (legal
conclusion)
67:22-68:3 (legal conclusion)
71:3-73:5 (hearsay)
73:22-74:13 (hearsay)
82:12-25 (hearsay)
83:3-84:7 (hearsay)
84:10-23 (hearsay)
100:3-13 (hearsay)
117:8-23 (legal conclusion)
100:8-19 (legal conclusion)
129:11-16 (hearsay)
11:11-12, 14 (hearsay)
13:18-15:11 (hearsay)
49:19-52:15 (hearsay)
5

Ruling
Granted; witness can rephrase
Denied
Denied
Granted
Denied
Denied
Denied; doesn’t match with a statement or a
question calling for hearsay
Designations withdrawn
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied

Marc
Thomashaw
6-28-11
Marc
Thomashaw
10-18-11

65:17-18 (hearsay)
65:23-67:7 (hearsay)
80:5-18 (hearsay)
81:17-82:11 (hearsay)
87:5-7 (hearsay)
91:10-12 (hearsay)
91:19-92:4 (hearsay)
92:17-93:7 (hearsay)
103:19-22 (hearsay)
107:19-108:11 (hearsay)
24:19-25:8 (hearsay)
27:8-22 (hearsay)
41:10-13 (hearsay)
152:7-153:7 (hearsay)
192:5-13 (hearsay)
40:5-43:10 (hearsay)
46:11-48:14(hearsay)

Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Granted as to 43:7-10, otherwise denied
Granted as to 47:22-48:1, 13-14, otherwise
denied
Denied
Granted as to 49:17-21, 50:10-22,
otherwise denied
Granted as to 53:4-13, 18-24, otherwise
denied
Denied
Denied
Granted as to 64:1-11, 24-25; 65:8-13, 1921, otherwise denied
Denied
Denied
Denied
Granted as to 76:14-19, 77:4-19; 78:17-21;
79:1-4, otherwise denied
Denied
Denied
Granted as to 99:15-17, otherwise denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied

48:21-49:2 (hearsay)
49:10-51:6 (hearsay)
51:10-55:10 (hearsay)
56:4-24 (hearsay)
58:19-20 (hearsay)
62:13-65:21 (hearsay)
72:3-75:16 (hearsay)
75:22-25 (hearsay)
76:5 (hearsay)
76:8-83:6 (hearsay)
92:2-18 (hearsay)
98:13-99:6 (hearsay)
99:9-19 (hearsay)
117:2-118:5 (hearsay)
125:2-127:25 (hearsay)
130:5-133:22 (hearsay)
134:5-136:14 (hearsay)
136:17-137:1 (hearsay)
140:14-148:21 (hearsay)
158:12-159:2 (hearsay)
159:4-25 (hearsay)
161:5-11 (hearsay)
161:14-162:21 (hearsay)
162:24-163:4 (hearsay)
163:7-18 (hearsay)
163:25-164:1 (hearsay)
164:18-166:17 (hearsay)
166:20-168:10 (hearsay)
168:13-169:4 (hearsay)
6

175:2-4 (hearsay)
175:7-13 (hearsay)
176:16-182:6 (hearsay)
182:9-184:1 (hearsay)
184:4-189:4 (hearsay)
189:7-192:21(hearsay)
194:7-196:23 (hearsay)
197:1-198:4 (hearsay)
205:4-206:10 (hearsay)
206:13-24 (hearsay)
230:15-232:1 (hearsay)

Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied

7

Realauctions’s Objections to Grant Street’s Exhibit List (ECF No. 456-2)
Ex. No.
3
4
5
24
25
27
30
31
32
35
36
37
38
39
40
41
46
48
49
54
58
61
62
64
65
66
71
73
76
78
93
95
97
115
117
118
121
128
143
168
173
174
175

Ruling on Hearsay Objections
Denied
Denied
Denied without prejudice
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied
Denied, without prejudice
Denied, without prejudice
Denied, without prejudice
Denied
Denied
Granted except pages or excerpts that are actually statements of an
opposing party. Objection as to those pages or excerpts are denied.
Denied
Denied
Denied
Denied without prejudice
Denied
Granted
Denied without prejudice
Denied
Denied
Denied without prejudice
Denied
Denied
Denied
Denied
Granted
Granted
Granted
Granted
Granted

8

Realauctions’s Objections to Counter Deposition Designation (ECF No. 463)1
Witness
David Dering
Robert O’Neill
David Landes
7/27/11
David Landes
11/15/02
David Landes
10/2/06
Jeffery Harris
Robert Panoff

Hearsay Objections
35:13-36:5
71:22–73:3
20:22-22:10
57:8-60:13
62:15-69:12
69:15-72:20
81:9-82:1

Ruling
Granted
Granted
Granted as to 21:16-22:2; Denied as to all
other portions
Denied
Denied
Denied
Denied

35:6-41:7
42:1-49:25
121:20-121:25
63:8-67-18

Denied
Denied
Granted
Denied

BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

Date: December 28, 2012

1

Just as a note: Grant Street did not respond to Realauction.com’s Objections to Plaintiff’s CounterDesignations.
9